Chandigarh

DF-I

CC/291/2023

AKSHAY KUMAR BANSAL - Complainant(s)

Versus

EMERGING VALLEY P LTD - Opp.Party(s)

KAVITA ARORA ADVOCATE

02 Jan 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                                     

Consumer Complaint No.	:	CC/291/2023
Date of Institution	:	2.6.2023
Date of Decision	:	2/01/2024

 

1.       Akshay Kumar Bansal S/o Shri Kasturi Lal Bansal resident of Guru Ashish-17, Sri Ram Colony, Near Shiv Chownk, Sri Ganganagar.

 

… Complainant(s)

V E R S U S

1. Emerging Valley (P) Ltd. a unit of Emerging India Housing Corporation (P) Ltd. Registered office, B-57, Lower Ground South Extension Paret-II, New Delhi-49, through its Managing Director/Authorized Signatory.
2. Emerging Valley(P) Ltd. a unit of Emerging India Housing Corporation(P) Ltd. through its authorized signatory Corp office:46-47, Near Matka Chowk, Madhya Marg, Sector 9-D, Chandigarh.
3. Managing Director, Gurpreet Singh Sidhu, C/o M/s Emerging Valley(P) Ltd. a unit of  Emerging India Housing Corporation(P) Ltd., R/o House No.208, Sector-9 Chandigarh 160009.

… Opposite Parties

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	MRS. SURJEET KAUR	MEMBER

 

                                                                               

ARGUED BY	:	Ms. Kavita Arora, Advocate  for complainants
	:	OPs exparte.

 

Per Pawanjit Singh, President

1. The present consumer complaint has been filed by the complainant under Section 35 of the Consumer Protection Act 2019 against the opposite parties  (hereinafter referred to as the OPs). The brief facts of the case are as under:-

1. It transpires from the averments as projected in the consumer complaint that  in the year 2012, the OPs have given advertisement of sale of cottage farm house (hereinafter to be referred as subject farm house)  in their project  namely Siswan Paradise  Pvt. Ltd. . The complainants allured with the flashy advertisement given by the OPs, purchased the subject farm house measuring 60.5 sq. yards  and paid an amount of Rs.4,27,500/-  to the OPs as sale consideration and the OPs accordingly allotted the subject farm house to the complainant vide allotment letter  Annexure C-1. On 6.7.2012 vide letter Annexure C-2 the complainant NO.1 asked the OPs to change the allotment of the subject farm house  in the name of his son i.e. complainant No.2 so that he could settle near Chandigarh alongwith complainant No.1.   Accordingly on the request of the complainant No.1 the OPs vide letter Annexure C-3 dated 24.8.2012 allotted the subject farm house in the name complainant No.2 after receiving an amount of Rs.3.00 lakh  from complainant No.1 and at that time the OPs had also given buy back offer of the said project wherein they had offered the customer buy back amount of Rs.5,55,750/- after three years from the date of purchase i.e. 19.7.2012.  When the complainants visited the site, it was found that there was not even a single development at the site and when the complainants went to the office of the Ops and asked them to refund the deposited amount, the OPs admitted that the subject project is not having required approval and asked the complainants to get flat in other project namely Emerging Heights-III at Sector 115, Mohali. As there was no other option for the complainants they agreed to get the flat in the said project  for sale consideration of Rs.32,50,000/- and  the complainant No.2  again paid an additional amount of Rs.5,95,000/- and the copy of allotment letter dated 28.1.2013 qua the 2BHK flat No.G-201 in Emerging Heights-III is annexed as Annexure C-4.  Thereafter  the OPs again asked the complainants to pay the due amount  and accordingly complainants firstly paid an amount of Rs.1,50,000/- and thereafter the OPs had issued another letter dated 21.3.2013 showing that the complainants had already paid an amount of Rs.7,45,000/- as partial sale consideration  of the aforesaid flat. At that time the OPs had assured that they had already taken approval from the competent authority for the development of the project.  The complainant has already paid a total amount of Rs.10,50,000/- towards the sale consideration of the aforesaid flat  and  when the complainant asked the OPs to issue formal allotment letter qua the aforesaid flat, they assured that the receipt dated 28.1.2013 is complete allotment letter and no separate allotment letter is required. At that time the OPs assured that possession of the aforesaid flat will be given to the complainants within 2 years from the date of receipt dated i.e. 28.1.2013. Again in the year 2014 when the complainants went to see the development of the project, it was found that there was only basic structure of the flat  and there was no other development on the site. Accordingly, the complainants submitted a letter dated 25.3.2014 to the OPs seeking clarification of the project of the OPs but no response was given by the OPs. Thereafter, the complainants approached the Ops in their office and requested for cancellation of flat and at that time Ops informed the complainants that they have no fund to raise construction and again asked the complainants to purchase a plot in Emerging Valley Scheme at Landran Banu Highway SAS Nagar Mohali in exchange of flat. As there was no other option with  the complainants, they agreed to purchase the plot measuring 200 Sq. yards for a total sale consideration of Rs.33,00,000/-. Thereafter the OPs issued allotment /payment confirmation letter Annexure C-9 dated 31.7.2014 whereby they confirmed the payment of Rs.10,50,000/- in lieu of flat.  Thereafter the complainants again made  payment of Rs.1,00,000/- on 3.9.2014  and Rs.2,50,000/- on different dates thereby made a total amount of Rs.13,55,000/- to the OPs.  Thereafter on 29.11.2017 the complainants received a letter of offer of possession of the subject plot from the Ops vide Annexure C-11 and after receiving the said letter when the complainants went to the site, they were shocked to see that there was no development at the site and vide letter Annexure C-12 dated 14.12.2017,  the complainant sought refund of the amount deposited by them. On enquiry from the persons available at the site, it was informed to the complainant that no CLU or permission for development was with the OPs for the construction of the site. On receiving the letter dated 20.6.2017  which was sent to one of the alottee  by the GMADA, it was found that tno licence was issued to OPs by  GMADA for the development of the project. The copy of letter dated 20.6.2017 is annexed as Annexure C-13. The aforesaid act amounts to deficiency in service and unfair trade practice on the part of OPs. OPs were requested several times to admit the claim, but, with no result.  Hence, the present consumer complaint.
2. OPs  was properly served and when OPs did not turn up before this Commission, despite proper service, they were proceeded against ex-parte on 11.9.2023.

2. In order to prove their case, complainant has tendered/proved their evidence by way of respective affidavits and supporting documents.
3. We have heard the learned counsel for the complainants and also gone through the file carefully, including the written arguments.
   1. At the very outset, it may be observed that when learned counsel for complainant vide her statement has confined her claim for refund of amount etc. and it is an admitted case of the complainant that the complainants firstly allotted one farm house measuring 605, Sq.ft.  and later on in lieu of the said form house, one flat of 2BHK was allotted to complainant No.2 and later, on finding that the said flat was also not approved by the competent authority, the OPs asked the complainants to take the subject plot  measuring 200 Sq. yards in Emerging Valley Pvt. Ltd. at Landran Banur Road, SAS Nagar, Mohali, Punjab and further later on when it was found that the subject project where the OPs had allotted the subject plot to the complainants had also not been approved by the competent authorities, the complainants requested the OPs to refund the deposited amount of Rs.13,55,000/- but the same has not been refunded by the Ops nor ever  possession of the same was given to the complainants, the case is reduced to a narrow compass as it is to be determined if  the aforesaid act of the OPs amounts deficiency in service.
   2. Perusal of Annexure C-1, allotment letter  indicates that  the OPs had earlier allotted cottage farm house  measuring 605Sq. yards to the complainant No.1 on 14.6.2012  by receiving an amount of Rs.4,27,500/-  as is evident from copy of letter Annexure C-3. It is further clear from letter dated 28.1.2013 Annexure C-4 issued by the OPs to complainant No.2 that 2BHK flat was allotted to him for sale consideration of Rs.32,50,000/- and the earlier payment made by the complainant No.1 father of the complainant No.2 was adjusted in the sale consideration of the subject flat. It is further clear from allotment/payment confirmation  letter Annexure C-9 dated 31.7.2014 that the OPs had again allotted plot measuring 200 sq.  yards and confirmed the receipt of payment of Rs.10,05,000/-.Copy of statement of account Annexure C-10 further indicates that the complainant No.2 had further paid an amount as requested by them. In this manner, the Ops had received an amount of Rs.13,55,000/- . Annexure C-11 is the copy of letter of offer of possession, which indicates that the OPs asked the complainant to take possession of the subject plot. Annexure C-13 is the copy of letter issued by the GMADA to one of the allottee  Manvir Singh  which clearly indicates that no license was issued to the OPs with respect of their project in question as the OPs could not fulfill the condition of letter of intent, making clear that even till 2017 the OPs were not having license to develop the project or till date. Thus, it has come on record that the OPs could not obtain the necessary approvals from the competent authorities or license  for launching  their project and collected a handsome amount from the complainants to the tune of
      Rs. 13,55,000/- before approval of the project.
   3. Not only this, OPs have failed to turned up before this Commission to clarify this Commission by leading any evidence or making any defence as to why they had received huge amount from the complainants knowing fully well that necessary clearances have not been given by the competent authority, which was otherwise obligatory on the part of the OPs to obtain all the approvals/ clearances before booking the subject flat.  If the OPs chose to accept the booking without obtaining the approvals/clearances or amended clearances, they are only themselves to blame for the same as the purchaser of the subject floor/flat/plot has nothing to do with the grant of statutory approvals/clearances/amended clearances and for the said act of the OPs, complainant cannot be penalized by postponing the possession.  In this regard, reference can be made to the order passed by the Hon’ble National Commission in the case of M/s. Narne Constructions Pvt. Ltd. Vs. Dr. Devendra Sharma & 4 Ors., Revision Petition No.4620 of 2013, decided on 17.12.2015 and the operative part of the same reads as under :- 

                             “…..As far as final sanction of layout by HUDA is concerned, in my view, the petitioner cannot penalize the complainants/respondents for the delay in the aforesaid sanction since delay cannot be attributed to any act or omission on the part of the complainants/respondents.  In fact, in my opinion, the petitioner should not even have accepted the booking without final sanction of the layout by HUDA.  If the petitioner chose to accept booking on the basis of provisional sanction of the layout by HUDA, it is to blame to only itself for the delay, if any, on the part of the HUDA in issuing the final sanction of the layout.  The purchaser of the plot, who had nothing to do with the sanction of the layout by HUDA cannot be penalized, by postponing the possession or registration of the plot and therefore any escalation in the registration charges on account of delay in final sanction of layout by HUDA must necessarily be borne by the builder and not by the allottee of the plot…..”

 

4. It has thus been proved on record that money had been collected from the prospective buyers including the complainants, without obtaining statutory approvals/ clearances. Collecting money from the prospective buyers and selling the plots/units in the project, without obtaining the required licence/approvals/ clearances/amended clearance is an unfair trade practice on the part of the project proponent. It was so said by the Hon’ble National Commission, in a case titled as M/s Ittina Properties Pvt. Ltd. & 3 Ors. Vs. Vidya Raghupathi & Anr., First Appeal No. 1787 of 2016, decided on 31.5.2018 and the relevant portion of the order reads as under:-

“…………….This Commission in Brig. (Retd.) Kamal Sood Vs. M/s. DLF Universal Ltd., (2007) SCC Online NCDRC 28, has observed that it is unfair trade practice on the part of the Builder to collect money from the perspective buyers without obtaining the required permission and that it is duty of the Builder to first obtain the requisite permissions and sanctions and only thereafter collect the consideration money from the purchasers.

It is an admitted fact that the sale deeds were executed in the year 2006 and by 2009 the completion certificate was not issued. The Occupancy Certificate was issued only on 25.09.2017 during the pendency of these Appeals before this Commission. Allotting Plots or Apartments before procuring the relevant sanctions and approvals is per se deficiency…………”

5. The complainants have also relied upon the judgment of Hon’ble National Commission in the case of Sujay Bharatiya & Anr. Vs. Unitech Reliable Projects Pvt. Ltd., Consumer Case No.1814 of 2017 decided on 05.07.2018 in which it was held that non delivery of possession of plots/units in a developed project by the promised date is a material violation on the part of the builder and in those cases, allottees are well within their rights to seek refund of the amount paid. The above view is further supported by the principle of law laid down by the Hon’ble Supreme Court of India in the case titled as Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, Civil Appeal No.12238 of 2018, decided on 02.04.2019 and also in Fortune Infrastructure Vs. Trevor D’ Lima & Ors. (2018) 5 SCC 442.
6. Recently, the Hon’ble National Commission in Sanjiv Kumar Jain & Anr. Vs. Lodha Crown Buildmart Private Limited, II (2023) CPJ 271 (NC) has held that inordinate delay in offer of possession, amounts to ‘deficiency in service’ and home buyer can ask for refund on this ground alone and if unreasonable delay in offer of possession is proved then it is sufficient to grant relief of refund and other grounds are not liable to be examined.  The relevant headnote of the order is reproduced below for ready reference :-

“(iii) Consumer Protection Act, 1986 — Sections 2(1)(g), 14(1)(d), 21(a)(i) — Housing — Booking of duplex flat — Non-delivery of possession — Deficiency in service — Inordinate delay in offer of possession, amounts to ‘deficiency in service’ and home buyer can ask for refund, on this ground alone — If unreasonable delay in offer of possession is proved then it is sufficient to grant relief of refund and other grounds are not liable to be examined — As there was unreasonable delay in offer of possession, complainants are entitled for refund of full amount under Clause 11.3 of agreement — Home buyer cannot be made to wait for possession of flat for indefinite period — Opposite party is directed to refund entire amount deposited by complainants with interest @ 9% per annum from date of respective deposit till date of payment.”

 

7. As far as the question as to how the cause of action has arisen to the complainants is concerned,  it has come on record that the OPs  has failed to deliver the lawful possession of the subject plot after obtaining necessary approvals/completion certificate from the competent authority. In this regard, reliance can be placed on the judgments of Hon’ble Apex Court in the case of Lata Construction &Ors. Vs. Dr. RameshchandraRamniklal Shah &Anr., AIR 1999 SC 380 and Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC) wherein it was held that when possession of the residential units is not offered, there is continuing cause of action in favour of the allottee/buyer.  It has also been held by the Hon’ble National Commission in the case of Chairman and Managing Director, Ajeet Ajay Estate and Resort Pvt. Ltd. Vs. Dinesh, R.P. No.1978 of 2017 decided on 29.3.2019 that if the amount deposited lies with the builder and it has not returned the same, there will be continuing cause of action in favour of the complainants to file the consumer complaint. It was also held by the Hon’ble National Commission in the case of KNK Promoters & Developers v. S.N. Padmini, IV(2016) CLT 54 (NC) and Saroj Kharbanda v. Bigjo’s Estates Ltd., II(2018) CPJ 146 (NC) that the builder/OPs cannot withhold the amount deposited by the allottee and if it is so, there is continuing cause of action in favour of the allottee to file a complaint seeking refund of the said amount
8. In view of the aforesaid discussion, it is safe to hold that the complainants have successfully proved the cause of action set up in the consumer complaint and the aforesaid act of OPs amounts to deficiency in service and unfair trade practice on their part, especially when the entire case set up by the complainants in the consumer complaint as well as the evidence available on record is unrebutted by the OPs. Hence, the instant consumer complaint deserves to be allowed.

4. In the light of the aforesaid discussion, the present consumer complaint succeeds, the same is hereby partly allowed and OPs are directed as under :-

1. to refund ₹13,55,000/- to the complainants alongwith interest @ 9% per annum from the respective dates of deposit till onwards.
2. to pay an amount of ₹40,000/- to the complainants as compensation for causing mental agony and harassment to them;
3. to pay ₹10,000/- to the complainants as costs of litigation.

5. This order be complied with by the OPs within thirty days from the date of receipt of its certified copy, failing which, they shall make the payment of the amounts mentioned at Sr.No.(i) & (ii) above, with interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above.
6. Pending miscellaneous application(s), if any, also stands disposed off.
7. Certified copies of this order be sent to the parties free of charge. The file be consigned.

Announced 2/01/2024 mp			Sd/- [Pawanjit Singh] President
			Sd/-
			[Surjeet Kaur] Member